Senate Hearing, 109TH Congress - Cameras in The Courtroom

S. HRG.
109331
CAMERAS IN THE COURTROOM
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
NOVEMBER 9, 2005
Serial No. J10950

Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY

ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah
PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa
EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona
JOSEPH R. BIDEN, JR., Delaware
HERBERT KOHL, Wisconsin
MIKE DEWINE, Ohio
JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina
RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas
CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas
RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
MICHAEL ONEILL, Chief Counsel and Staff Director
BRUCE A. COHEN, Democratic Chief Counsel and Staff Director
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CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ......................................................................................................................
Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ...................................................................................................
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa .....................
prepared statement ..........................................................................................
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont ....................
Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania .................
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WITNESSES
Bergman, Barbara E., President, National Association of Criminal Defense
Lawyers, Washington, D.C. .................................................................................
Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP, Washington, D.C. ....
Cochran, Barbara, President, Radio-Television News Directors Association,
Washington, D.C. .................................................................................................
DuBois, Jan E., Judge, District Court for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania .....................................................................
Irons, Peter, Professor of Political Science, Emeritus, University of California
at San Diego, San Diego, California ...................................................................
Lamb, Brian P., Chairman and Chief Executive Officer, CSPAN Networks,
Washington, D.C. .................................................................................................
OScannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit,
Portland, Oregon ..................................................................................................
Schleiff, Henry S., Chairman and Chief Executive Officer, Courtroom Television Network, LLC, New York, New York ......................................................
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SUBMISSIONS FOR THE RECORD

Bergman, Barbara E., President, National Association of Criminal Defense
Lawyers, Washington, D.C., prepared statement ..............................................
Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP, Washington, D.C.,
prepared statement ..............................................................................................
Cochran, Barbara, President, Radio-Television News Directors Association,
Washington, D.C., prepared statement ..............................................................
DuBois, Jan E., Judge, District Court for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania, prepared statement ..................................
Irons, Peter, Professor of Political Science, Emeritus, University of California
at San Diego, San Diego, California, prepared statement and attachment ....
Lamb, Brian P., Chairman and Chief Executive Officer, CSPAN Networks,
Washington, D.C., prepared statement and attachment ..................................
OScannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit,
Portland, Oregon, prepared statement ...............................................................
Schleiff, Henry S., Chairman and Chief Executive Officer, Courtroom Television Network, LLC, New York, New York, prepared statement ...................
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(III)
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CAMERAS IN THE COURTROOM

WEDNESDAY, NOVEMBER 9, 2005
U.S. SENATE,
JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in room
SD226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, Sessions, Leahy, and Schumer.
COMMITTEE
ON THE
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA
Chairman SPECTER. Good morning, ladies and gentlemen. The

Judiciary Committee will now proceed on our hearing on cameras
in the courtroom. The Ranking Member will be joining us very
shortly.
This is a subject of enormous importance to the American people
on the basics of understanding how the Government functions. Senator Grassley, who is our lead witness today, has had legislation
pending on cameras in the courtrooms of the circuit courts and the
district courts, and I have had legislation pending since 2005, for
some 5 years, to open up the Supreme Court of the United States
to cameras.
The Supreme Court, as our system of Government has evolved,
is deciding the cutting-edge questions of our day, decisions on who
will live and who will die, what is the power of the President, what
is the relative power of the Congress, whether marijuana may be
used for medicinal purposes, where the balance will lie in a womans right to choose, what DNA evidence may be used to exonerate
the innocent. The whole range of cutting-edge questions have been
left really to the Supreme Court of the United States.
In the year 2000, the Court in effect decided who would be the
President of the United States. There was the largest array of television truck that I have ever seenand I have seen assemblages
of television trucksin front of the Supreme Court building when
that case was decided. And it was, I thought, most unfortunate
that the cameras were not allowed inside so that the American people and the people of the world could see precisely what was going
on.
At that time, Senator Biden and I had written to the Chief Justice urging that the case be open to television. The Chief Justice
declined. They did release an oral transcript shortly after the hear(1)
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ings ended, and that was illuminating, but far from what would
have been apparent had cameras been in the courtroom.
The House of Representatives and the Senate have been televised now for decades. And I think at the outset there might have
been some grand-standing, so to speak, but it has been an enormously useful tool for public understanding as to how the Congress
works.
The hearings of the House and Senate have long been televised.
The comments that I hear most frequently about television relate
either to the NFL, the World Series or CSPAN, and late-night
viewing is practically captured by CSPAN.
It is my thinking that the Congress has the authority to legislate
on cameras in the courtroom for the Supreme Court. The Congress
makes the determination as to how many justices there are on the
Court. The Congress makes the determination of what is a quorum
for the Court. The Congress makes the determination for when the
Court will begin its session on the first Monday in October. The
Congress has imposed time limits for the Supreme Court. And by
analogy to those lines, I think it is fair for the Congress to legislate
in this field.
Obviously, if the Supreme Court decides as a matter of separation of powers that it is not a Congressional prerogative, we will
not petition for a rehearing. That will be the judicial decision which
we respect since Marbury v. Madison.
We have a distinguished array of witnesses today. Our lead witness is Senator Charles Grassley, the senior Senator from Iowa. He
came to the U.S. Senate in 1980, a banner year for Republicans.
Some 16 Republicans were elected that year, and two of them were
Charles Grassley and Arlen Specter, and the only two survivors are
the two of us.
Senator Grassley was once analogizedI am going to be a little
more liberal with the time, since no other Senator is on the panel.
I usually stop promptly with the red light. Senator Grassley was
analogized or compared to President Harry Truman as being very
plain-spoken. The expression was horse sense, and with Senator
Grassleys background as a farmer, he took it as a compliment and
it was intended as a compliment. And I can say that with some certainty because it was my statement about Senator Grassley.
Welcome, Senator Grassley. You are a distinguished member of
this Committee, you are a distinguished member of the Senate, and
we look forward to your testimony.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator GRASSLEY. Well, thank you very much for giving us an

opportunity to speak about openness in our courts. As you know,
I have long championed this, most recently with Senator Schumer,
going way back to the 106th Congress when we first introduced the
sunshine bill. Over the years, it has enjoyed bipartisan cosponsorship, and we have had the opportunity of getting our bill out of this
Committee three times since that 106th Congress.
Just a couple of months ago, the new Chief Justice testified before our Committee about this issue when I and several members
asked, and he seemed to have a great deal of open-mindedness on
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this subject. Todays hearing, I hope, will help him with facts needed to make decisions to open the Supreme Court, as well as other
Federal courts, to cameras. As you know, the House Judiciary Committee just passed out by a vote of 20 to 12 a House companion
that was introduced by Congressman Chabot.
The Grassley-Schumer bill will give Federal judges the discretion
to allow for photographing, electronic recording, broadcasting and
televising in Federal courts. The bill will help the public become
better acquainted about the judicial process, produce, I think, a
healthier judiciary, increase public scrutiny, bring greater accountability, and I think help judges to do a better job. The sun needs
to shine in on the Federal courts.
In this room, we often talk about the intentions of the Founding
Fathers. I think allowing cameras in the Federal courtroom is absolutely consistent with their intent that trials be held in front of as
many people as choose to attend. I believe the First Amendment
requires court proceedings to be open to the public and, by extension, news media.
As the Supreme Court articulated in 1947, in Craig v. Harney,
quote, A trial is a public event. Another quote: What transpires
in the courtroom is public property. The Supreme Court stated in
its 1980 ruling in Richmond Newspapers, People in an open society do not demand infallibility from their institutions, but its difficult for them to accept what they are prohibited from observing.
Beyond the First Amendment implications, enactment of our bill
would assist in the implementation of the Sixth Amendments
guarantee of public trials in criminal cases. In its 1948 Oliver opinion, the Supreme Court said, quote, Whatever other benefits the
guarantee to an accused that his trial be conducted in public may
confer upon society, the guarantee has always been recognized as
a safeguard against any attempt to employ our courts as instruments of persecution. The Court stressed that, quote, The knowledge that every criminal trial is subject to contemporaneous review
in the forum of public opinion is an effective restraint on possible
abuse of judicial power, end of quote. Louis Brandeis captured it
better by saying Sunshine is the best disinfectant.
During this mornings hearing, we are going to hear from opponents. Much of their opposition is based on speculation and false
assumptions. The criticism ignores the findings of at least 15 State
studies and a large Federal pilot program.
The widespread use of cameras in State court proceedings shows
that still and video cameras can be used without any problems and
that procedural discipline is observed. All 50 States allow for some
modern audio-visual coverage of court proceedings. My own State
of Iowa has done this for almost 30 years.
There are many benefits and no substantial detriment to allowing greater public access to the inner workings of our courts. Fifteen States conducted studies aimed specifically at the educational
benefits derived from cameras. They all determined that camera
coverage contributed to greater public understanding of the judicial
process.
Further, at the Federal level, the Federal Judicial Center conducted a pilot program in 1994 which studied the effects of cameras
in selected courts. That study found, quote, small or no effect of
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camera presence on participants in the proceeding, courtroom decorum, or the administration of justice, end of quote.
However, in order to be certain of the safety and integrity of our
judicial system, we have included a 3-year sunset. It is also important to note that the bill simply gives judges the discretion to use
cameras in the courtroom. It does not require the judges to do that.
The bill also protects anonymity of non-party witnesses by giving
them the right to have their voices and images obscured.
So this bill doesnt require cameras, but allows judges to exercise
their discretion to permit cameras in appropriate cases. I think it
guarantees safety for our witnesses and doesnt compromise that
safety. So I hope we can pass it out of our Committee once again,
Mr. Chairman.
[The prepared statement of Senator Grassley appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Senator Grassley.
We have been joined by Senator Sessions.
Senator Sessions, would you care to make an opening statement?
Senator SESSIONS. No, Mr. Chairman. I just would say that I
chair the Administration and Courts Subcommittee and I have
given a lot of thought to this. I think we need to go carefully here
and I am looking forward to the panel and discussing the issues.
Chairman SPECTER. Thank you very much, Senator Sessions.
We now turn to another distinguished member of this Committee, Senator Charles Schumer, from the State of New York.
Senator Schumer went directly from the Harvard Law School to
the New York Assembly and then directly to the U.S. House of
Representatives, and then in 1998 was elected to the U.S. Senate,
much to the dismay of his parents, as he has told the story, right
from law school to public service without any intervening big
bucks.
Chuck Schumer is dedicated to public service in a big way. He
has run into big bucks, however, not for himself personally, but in
his prodigious fundraising capabilities. He can give tips to all of his
534 colleagues on television access. May the record show he is nodding in the affirmative.
We find him to be very, very active and a great contributor to
this Committee and we welcome him here this morning for his testimony.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator SCHUMER. Well, thank you, Mr. Chairman. I appreciate

your, I guess, kind introduction and am honored to serve with you.
I would note two quick things. I came to the Congress in 1980. You
mentioned, I think, 16 new Senators. I was one of seven freshman
Congressmen from New York, a Democratic blue State, six Republicans and myself. And I think I amlets seeyes, I think I am
the only one who is still there, too, just as you and Senator Grassley are. The other thing that links Senator Grassley on this bill is
we are the only two Charles Es in the Senate who are nicknamed
Chuck.
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Anyway, thank you, Mr. Chairman. I want to thank you and
Senator Leahy for scheduling this hearing. It is an important hearing about peoples ability to participate in this great democracy.
Public interest in our court system is higher than ever, and that
is a good thing because our democracy is stronger when participation is strong. No branch of our Government has remained a greater mystery to average people than our Federal courts, and that is
a shame because the decisions of our courts and the judges who sit
on them, judges who get a lifetime appointment, have tremendous
consequences for everyday lives.
An example: No case has had a more profound effect on the lives
of Americans as much as when the Supreme Court helped decide
the Presidential election 5 years ago in Bush v. Gore. We all remember that case. no matter what side you were on, you were riveted every step of the way. There was lots of concern then and
there still is a lot of talk about that case now, but the Court realized that, and this is what is so interesting.
With Bush v. Gore, the Court also made history in one other
way. For the first time in its history, the Court released an audio
tape immediately after the proceedings. The tape was broadcast all
over television and all over the radio. Millions of Americans listened intently just to get a feel for what was going on inside the
hallowed halls of the Supreme Court. And ask any one of them if
they would have liked to have the opportunity to watch the proceedings and the answer would have been an overwhelming yes.
Well, if the Court did that in Bush v. Gore, a case very important
particularly to people who care about politics, when they get a case
on disability, there are people who care about that maybe more so.
When they get a case on the environment, there are people who
care about that. When they get a case on business law, there are
business leaders who care about that.
I think the same standard ought to hold, and that is why I am
proud to cosponsor a bill with my colleague, Senator Grassley. As
he mentioned, we have worked on this a long time together and we
have had some success in moving it out of this Committee. I think
this is the year to make this law.
The reason for the bill is simple: it is openness. Courts are an
important part of our Government. The more people know how government works, the better. But the Federal Government, as has
been mentioned, lags far behind the States. I want to give another
example in my own home State of how openness worked.
We have allowed televised trials for decades. It has been a great
success. The critics say, oh, the cases of strong passion will become
circuses and everything else. Well, there was no case New Yorkers
felt more strongly about than the case of Amadou Diallo. Four police officers were eventually acquitted, but they were accused of
shooting Diallo, a Nigerian immigrant, in cold blood.
Because the case got such wide concern, the venue was moved
from the Bronx to Albany, but the judge wisely permitted live TV
coverage. It allowed anyone who was interested to watch the entire
trial, whether they lived in the Bronx, the neighborhood where it
occurred, or elsewhere. The cameras were not disruptive. The lawyers acted professionally. The rights of witnesses were not cur-
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tailed. Witnesses and jurors were not in the room, and so it didnt
diminish the dignity of the court.
But at the same time, when the publicmany people particularly
in the African-American community were very upset about this and
when they were able to watch the proceedings, most people agreed,
whether they agreed with the outcome or not that the jury decided,
that it was a fair trial. That wouldnt have happened if we didnt
have cameras in the courtroom. For people to just read the newspaper accounts doesnt give the same thing.
So this works. Allowing cameras into our courtrooms will help
demystify the courts. Let the public evaluate how well the system
works. Only then will the public really be able to decide based on
facts and real knowledge what changes need to be made.
Finally, as Senator Grassley mentioned, there are instances
where cameras are not appropriate and this bill takes care of that
by granting discretion to the judge. We dont really tie the judges
hands on this even though, as you note, Mr. Chairman, we probably could, although the court would have to rule on that ala
Marbury v. Madison.
But if the judge thinks that televising a trial would be harmful
maybe he thinks it is unfair to the defendant, maybe there are privacy concernsthe judge could ban it. It also allows witnesses to
request, as was mentioned, that their voices and images be obscured.
So the risk here isnt turning courtrooms into a circus or unduly
invading someones privacy. The risk is the danger we pose to our
society and our democracy when we close off our institutions to the
people they are supposed to serve.
Thank you, Mr. Chairman.
Chairman SPECTER. Thank you very much, Senator Schumer.
I turn now to our distinguished ranking member, Senator Leahy.
Senator LEAHY. Well, Mr. Chairman, I would just as soon wait
for Senator Grassley. Oh, you are done, OK. Well, then, I will
speak.
Chairman SPECTER. Do you think we would call on Schumer before Grassley?
[Laughter.]
Senator GRASSLEY. I am sorry you missed it, too.
Senator LEAHY. I know these two are not just two pretty faces;
they are here for substance. I didnt realize Senator Grassley had
already spoken. I was going to wait for him.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR
FROM THE STATE OF VERMONT
Senator LEAHY. I am glad to see this hearing. I am the son of

a printer. My parents not only had a printing business, but for a
while ran a small newspaper. So I come by my affection for the
First Amendment very honestly and directly. My father instilled in
me the sense that the freedom of speech in the First Amendment
is the foundation of this democracy. But it also assures that we will
have access to our Government.
When I was a young manactually, when I was a young prosecutor in Vermont, Vermont even then had this culture of open
government. We could talk to our elected officials and meet with
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them on a regular basis. You can have balances for security, but
there has to be this transparency. We have to know what is going
on. A democracy works best when there is sunshine in government.
I think right now there is this dramatic shift toward secrecy in
the government, and that is bad; it hurts the whole country. So we
have to expand access to government for all Americans. I have
tried to make all three branches of our Government more transparent and accessible. Congress and its committees, except for a
rare secret session, are open and carried live on cable television, C
SPAN, and radio. Members and the committees use the Internet
and the Web to let us know what is going on. The executive branch
is subject to FOIA, the Freedom of Information Act.
We then have the third branch. Now, most judicial proceedings
are open to those who can travel to the courthouse and wait in line
and they can see what is going on. But emerging technology could
invite the rest of the country into that same courtroom. You
wouldnt have to travel there. Whether I am sitting in my little
farm house in Middlesex, Vermont, or somebody is in their office,
anybody could be in that courtroom, with technology.
All 50 States have allowed some form of audio or video coverage
of court proceedings, but the Federal courts lag behind. I have cosponsored several bills to address this, including two bills currently
pendingthe one we have talked about, the Sunshine in the Courtroom Act of 2005, and the Televising Supreme Court Proceedings
Act with Senator Specter.
The First Amendment is one of those magnificent bequests to all
Americans and we have to protect it for succeeding generations. It
is a fragile gift; it needs nurturing and it needs protection by every
new generation. Lets use the technology available to this generation to give even greater guarantees to that amendment and the
free and open government it facilitates.
It is time to let some sunshine into our Federal courts. The Federal courts are the bulwark for the protection of individual rights
and liberties. The Supreme Court is often the final arbiter of constitutional questions having a profound effect on all Americans.
Why not allow the public greater access to the public proceedings
of the Federal courts? That is going to allow Americans to evaluate
for themselves, ourselves, all of us, the quality of justice in this
country.
They are there for all 280 million Americans. Let all 280 million
Americans know what is going on. It can deepen the understanding
of the work of the courts, but it can also deepen our understanding
that it is our rights that are there being protected. It is a fascinating subject and it is time for this.
I remember when I first came to the Senate we did not have television. We brought in radio during the Panama Canal debates. People tuned in throughout the country; they got involved. Then we
added television. That was an interesting experiment, and sometimes it has been good and sometimes it has been bad. Sometimes
there has been posturing and sometimes there have been riveting
matters. But the American people could see what they had a right
to see if they traveled to Washington, stood in line and went in
there. Well, I can see what goes on in my Federal court if I travel
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to the court, stand in line and go in there. I want to be able to see
from wherever I am.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Senator Leahy.
Just a question or two, Senator Schumer. Do you think that the
presence of the cameras in the Senate has any significant effect on
promoting grand-standing or hot-dogging among the Senators?
Senator SCHUMER. I really dont. I think that the overall benefit
of having CSPAN, with millions of Americans watchingthere
are now call-in shows where people respond to what is going on
has been extremely salutary for our democracy. I think it is great.
Chairman SPECTER. That is the next question. What do you hear
from your constituents about viewing CSPAN and watching the
Senate proceedings, and how much enlightenment does it give
them as to what we are doing?
Senator SCHUMER. Mr. Chairman, I am amazed at how many
people actually tune into CSPAN and how often you hear it. I
mean, maybe the average person doesnt, but a large number of
people do. And, again, it has demystified the Congress. It is different having an intermediary tell you what happened through
their eyes rather than seeing it through your own eyes. And what
CSPAN does and what cameras in the courtroom do is let anyone
who wants to, as Patrick Leahy said, view it themselves.
Chairman SPECTER. How about the CSPAN coverage of hearings? How many of your friendly insomniacs tell you that they saw
you at 3 a.m. or at some other ungodly hour?
Senator SCHUMER. I agree. You hear about it all the time for
hearings and for everything else. Have there been occasional times,
I guess, when people might regret having CSPAN in the Senate
chamber and the hearings? Once in a blue moon, very, very rarely,
and the benefit is every day, every minute.
Chairman SPECTER. Senator Leahy.
Senator LEAHY. The Chairman talked about the insomniacs at
three oclock, but they are making that choice to watch it.
Senator SCHUMER. You got it.
Senator LEAHY. And I know the number of e-mails and letters I
get even from a little State like Vermont from the number of people
who watch. But doesnt it also, though, come down again to if you
have an interest in what is going on in that court, you can watch
it?
Senator SCHUMER. Exactly.
Senator LEAHY. You have been there for Supreme Court arguments, as I have. I am a member of the Supreme Court bar. Senator Specter has argued cases there. We know that some of the
cases can be awfully arcane. Fine, but the case that we may find
arcane may have a very, very direct relationship to somebody elses
rights or interests. Why not be able to watch it?
Senator SCHUMER. Right.
Senator LEAHY. And I again I come back to the point that if you
can spend the money to travel to where the court is and stand in
line, you might get in and watch it. It is an open courthouse. Why
shouldnt it be open to everybody?
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Senator SCHUMER. Exactly.
Senator LEAHY. So, Mr. Chairman, I thank you for having these
hearings, and I agree with Senator Schumer and I agree with you
and Senator Grassley.
Chairman SPECTER. Senator Sessions.
Senator SESSIONS. I thank the Chairman and, Senator Schumer,
for your remarks. I think they are worthy of serious consideration.
We serve on the Courts Subcommittee together. During that Democratic spring, you chaired the Subcommittee, and now I chair that
Subcommittee.
I believe the courts are somewhat different than Congress. I believe the primary charge of a court is to provide justice in the case
before it, not to entertain and to create circumstances that might
undermine that. So as a person who spent a lot of time in the
courtroom who dealt with witnesses, talked to them, held their
hand, seen them cry before going in there, many times I comforted
them to say, well, probably all that is going to be there is some of
the family and a few other people, and dont worry about that. That
was some comfort to them.
Judges and polls show that witnesses would be affected by the
fact that what they may say about most intimate, personal, emotional issues, family disputes or love affairs and those kinds of
things, personal admissions of errors and wrongdoing, or maybe
even criminality that they participate in that they have to testify
toI think it is a basis for concern particularly in the trial court.
The ability to get truth and witnesses to cooperate and testify accurately would be undermined. That is what the judges believe and
that is where I am, particularly on the trial court.
I am not unhappy with the process that is established now for
the circuit courts, and believe the proposed legislation that allows
the presiding judge to make the call rather than the judicial council would be less satisfactory. That would be an aberrational process that would be not as justified, in my view, as a uniform council
policy.
The Supreme Court obviously has begun to loosen up some. They
have allowed their arguments to be taped and produced, but they
likewise have given this consideration quite a number of times and
have concluded that they do not wish their lawyers and the process
to be a television show, and that they would prefer it be focused
on the law of the case.
The judges ask awfully technical, legal questions. That is what
the American rule of law often is, is standing and procedural matters and statutes of limitations and those kinds of things. There
could be a tendency, I think, even for judges to go more away from
those issues and to the dramatic issue that may have attracted the
attention of the public. So I think the court is wise to consider this.
I think someone asked new Chief Justice Roberts what his views
were on this subject, and I am not sure what he said, but he obviously has left it open and the Court has the ability to do that.
So, Mr. Chairman, I know that there is a strong push for this.
I know a lot of the TV networks would like to see this occur. I respect what they do and respect the work that they perform, but my
feeling at this point is we should be very careful about this. And
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particularly by personal experience with Federal district courts, we
should not go forward to allow cameras in the courtroom.
Chairman SPECTER. Senator Sessions, when you say you werent
quite sure what Chief Justice Roberts said in response to the question
Senator SESSIONS. I think you asked it, maybe.
Chairman SPECTER. Oh, I asked him.
Senator SESSIONS. What did he say, Mr. Chairman?
Chairman SPECTER. Well, first, I want to comment where you
said you werent sure about what he said. Many of us werent sure
about what he said in answer to many questions.
[Laughter.]
Chairman SPECTER. His response to that question was that he
had an open mind. That was before he was confirmed, however. My
view has been that the nominees answer about as many questions
as they think they have to and they are as compliant as they can
be consistent with their consciences and what they may do later.
Senator SESSIONS. You are a wise and experienced Chairman,
Mr. Chairman.
Chairman SPECTER. We will revisit that. There are more people
on television. I walked into my office this morning and saw Justice
Breyer on television. You see Justice Scalia on television. It is coming.
Senator SESSIONS. Mr. Chairman, I would say this, that in the
evaluation of it I think the least detrimental would be the Supreme
Court. The next least detrimental consequences perhaps would be
the courts of appeals, and the most detrimental from my perspective would be the trial courts. So we will just see how it goes and
I look forward to the hearings.
Chairman SPECTER. Thank you for that, Senator Sessions. I am
putting you down in my tally sheet as leaning.
[Laughter.]
Chairman SPECTER. We are going to now turn to the judicial
panel.
Thank you very much for joining us, Senator Schumer, and you
are welcome to stay.
Senator SCHUMER. Thank you.
Chairman SPECTER. Our next witness is Judge Diarmuid
OScannlain, a Ninth Circuit, having been confirmed in 1986. He
has had a distinguished record in public service in a variety of positions. He was on the Advisory Panel for the U.S. Secretary of Energy. He had been the Director of the Oregon Department of Environmental Quality, Deputy State Attorney General for Oregon. He
served in the Judge Advocate General Corps. He has a bachelors
from St. Johns and a law degree from Harvard, and a J.D. and
LL.M. from the University of Virginia.
Thank you for joining us, Judge OScannlain, and we look forward to your testimony.
STATEMENT OF DIARMUID F. OSCANNLAIN, JUDGE, U.S.
COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND,
OREGON
Judge OScannlain. Thank you very much, Mr. Chairman and

members of the Committee. My name is Diarmuid OScannlain,
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United States Circuit Judge for the Ninth Circuit, with chambers
in Portland, Oregon. I thank you for inviting me to share my personal experience with televised proceedings of the U.S. Court of Appeals for the Ninth Circuit.
Our court is one of two courts of appeals involved in a pilot program under which audio equipment, still cameras or video cameras
can be admitted to the courtroom upon request and with approval
from the panel hearing the case. Since 1991, until last week, we
have logged 205 requests to allow media into oral arguments. Of
these requests, the panels granted 133.
But to give some perspective, the Ninth Circuit has heard oral
arguments in approximately 24,000 cases since 1991, meaning that
media requests for videotaping or live television have been requested in less than 1 percent of the total cases receiving oral argument.
To gain access to a Ninth Circuit courtroom, a member of the
media with cameras need only fill out a simple form requesting
very basic information. The clerk of the court then transmits the
request to the panel, which can grant or deny the request by majority vote of the judges assigned to that case.
The Ninth Circuit requires media representatives to obey modest
guidelines which request proper attire, ban the use of flash photography or other potentially distracting filming, prohibit the broadcast of any audio conversations between clients and attorneys, and
limit the total number of cameras that can be present for any single oral argument.
The Committee might also be interested to know that the Ninth
Circuit currently makes audio playback of all oral arguments available through its website the day after the hearing, and frequently
provides a live audio feed of oral arguments in certain cases. Furtherand this may not be generally knownall arguments are recorded on the courts unobtrusive internal videotaping system for
the courts own records.
I have personally had 44 requests to allow cameras in oral arguments in which I have been a panel member, of which nearly 80
percent have been granted. In other words, I have personally participated in 35 appellate oral arguments which were videotaped or
televised live, which experience is the basis of my testimony today.
These requests range from high-profile, attention-grabbers to the
comparatively banal. Among the more controversial three-judge
cases were Brown v. Woodland School District which considered
whether certain Sacramento area classroom activities required children to practice witchcraft, in violation of the First Amendment.
Understandably, cases involving elections and the right to vote
have generated substantial public interest and press coverage. For
example, I sat as a member of a limited en banc panel of 11 judges
in a very high-profile, live video coverage of a case evaluating
whether the California recall election of Gray Davis, the Governor,
should be enjoined as a violation of the 14th Amendment because
of the use of punch card balloting machines.
Of course, not every request to bring media into our courtrooms
has been allowed. Panels, perhaps motivated by concern for the
parties, have occasionally shunned cameras. For example, in Compassion in Dying v. Washington, the court grappled with whether
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a State statute criminalizing the promotion of suicide violated the
14th Amendment.
Some judges will vote to deny video access unless assured that
the media will broadcast the tape on a gavel-to-gavel basis. Indeed,
just last weekend CSPAN aired the entire oral argument in
Planned Parenthood v. Gonzales, a partial birth abortion case that
was argued several weeks before.
Finally, Mr. Chairman, I appear before you today both in my individual capacity supportive of cameras in appellate courtrooms
and on behalf of the Judicial Conference of the United States,
which opposes cameras in trial courtrooms. Trial courts and appellate courts differ in important respects, primarily with respect to
the presence of victims, witnesses, juries and, of course, the parties
themselves.
For this reason, I have serious concerns regarding the placement
of cameras in trial courts, and suggest that questions about cameras in trial courts be directed to my district court colleague from
Pennsylvania, Judge Jan DuBois.
I thank you again, Mr. Chairman. I will be happy to take any
questions that you or the Committee members may have with respect to the use of cameras in the circuit appellate setting.
Thank you.
[The prepared statement of Judge OScannlain appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Judge OScannlain.
Our next witness is United States District Judge Jan DuBois
from the Eastern District of Pennsylvania. He has served there
since 1988 and prior to that time had a very extensive trial practice in Philadelphia with the law firm of White and Williams. He
had clerked for Circuit Judge Harry Kalodner.
He received his bachelors degree from the University of Pennsylvania in 1952 and his law degree from Yale in 1957, and in the
interest of full disclosure has been a friend of mine for 50 years.
I was at Penn with him. I did not make Sphinx, but Buddy DuBois
did. He had a distinguished record at the Yale Law School and has
been really an outstanding Federal judge.
He has handled major cases involving the prison system and has
no peer when it comes to hours in the courtroom, frequently running up the GSA bills on Saturday afternoon for air conditioning
in the summer and heating in the winter. He is well worth it and
beyond.
Welcome, Judge DuBois. The last time you were here was for
your confirmation hearing and we have some tougher questions for
you today. Please proceed.
STATEMENT OF JAN E. DUBOIS, JUDGE, U.S. DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, PHILADELPHIA, PENNSYLVANIA
Judge DUBOIS. Mr. Chairman, members of the Committee, my

name is Jan DuBois. I am presently a judge on the United States
District Court for the Eastern District of Pennsylvania. I have
served on the district court for 17 years. I am appearing before you
today in my personal capacity. I appreciate the invitation to testify
and hope my testimony will be useful to you.
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As you requested, my statement will cover the pilot program providing for electronic media coverage of civil proceedings in selected
Federal trial and appellate courtstwo courts of appeals, the Second Circuit and the Ninth Circuit, and six district courts, including
my district.
The pilot program authorized coverage only of civil proceedings.
Guidelines were adopted by the Judicial Conference, and I have appended a copy to my written testimony. The guidelines set forth
the procedures to be followed for using cameras in the courtroom.
Significantly, they also prohibited photographing of jurors and they
provided that the presiding judge had discretion to refuse, terminate or limit coverage.
To give you some idea of the scope of the program, from July 1,
1991, through June 30, 1993, there were 257 applications for media
coverage in all of the pilot courts. Of these, about 72 percent of the
applications were approved. Of this total, 257 cases in which applications were made, about 30 percent were submitted in the Eastern
District of Pennsylvania.
The Eastern District of Pennsylvania conducted a study at the
completion of the pilot program on December 31, 1994. More cases
had been the subject of applications and the percentages remained
about the same. Significantly, the breakdown of the cases in which
applications were filed in the Eastern District disclosed that about
49 percent of them involved civil rights. Next, in terms of percentage of requests were tort cases21 percent.
The Federal Judicial Center evaluated the program and I have
a copy of their report. It is entitled Electronic Media Coverage of
Federal Civil Proceedings in this program. It was published in
1994 and I understand it is on the Federal Judicial Center website.
That report included ratings of effects of cameras in the courtroom
by district judges who participated in the program and I have appended a copy of that part of the report to my written testimony.
The ratings by the judges who participated in the program were
both favorable and unfavorable. For me, the most disturbing ratings were these: 64 percent of the participating judges reported
that, at least to some extent, cameras made witnesses more nervous. Forty-six percent of the judges believed that, at least to some
extent, cameras made witnesses less willing to come to court.
Forty-one percent of the participating judges found that, at least to
some extent, cameras distracted witnesses, and 56 percent of the
participating judges found that, at least to some extent, cameras
violated witnesses privacy.
In my experience, I had, I believe, a total of four applications for
cameras in the courtroom. I granted three, denied one. Strangely,
the mediaI think it was Court TVcovered what I considered to
be the least dramatic case, a product liability case, and rejected
cameras in the prison class action, to which the Chairman referred.
In deciding whether to allow cameras, I conducted a conference.
The most commonly advanced objections offered by the attorneys
were the adverse effect on the parties and the adverse effect on
witnesses. In some cases, plaintiffs were concerned about disclosing
matters of an extremely private nature, and Senator Sessions has
already mentioned that. And in at least one case, a defense attorney said the threat of a televised trial would cause the defendant
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to consider settlement, regardless of the merits of the case. As far
as the adverse effect on witnesses, counsel were concerned that
cameras would make them less willing to appear. And, in general,
the attorneys objections tracked the comments of the judges who
participated in the program.
I will say this about cameras in the courtroom: My personal view
is that the disadvantages far outweigh the advantages. I say that
mindful of the fact that our courtrooms have to be open, and indeed
I think they are open. My concern about cameras in the courtroom
stems from the fact that I think the cameras do more than just report proceedings. They affect the substance of the proceedings, and
I say that based on my experience as a trial judge and my experience for 30 years as a trial attorney.
I think that the impact, or the potential impact, of cameras on
jurors, on witnesses and on parties augurs for not allowing cameras
in the district courts. The paramount responsibility of a district
judge is to uphold the Constitution, which guarantees citizens the
right to a fair and impartial trial. In my opinion, cameras in the
district courts could seriously jeopardize that right because of their
impact on parties, witnesses and jurors.
[The prepared statement of Judge DuBois appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Judge DuBois.
Judge OScannlain, you testified that you have been a party to
35 appellate proceedings and you have come to the conclusion that
you think it is desirable to have cameras in the courtroom, correct?
Judge OSCANNLAIN. At the circuit court of appeals level, yes. I
think our experience now over 13 yearsand it has continued since
1991 and is still onhas indicated that it seems to work well and
the vast majority of us feel that it is perfectly acceptable.
Chairman SPECTER. Any material impact on the lawyers who are
presenting the cases or on the judges who are presiding in terms
of responses for grand-standing
Judge OSCANNLAIN. Well, you always wonder here and there
Chairman SPECTER. Let me finish the question, Judge.
Judge OSCANNLAIN. I am sorry, excuse me, I am sorry.
Chairman SPECTER. Let me finish the questionor in any way
altering their regular conduct?
Judge OSCANNLAIN. Well, you always wonder here and there of
perhaps some aberrational moments, but by and large I have never
been offended by anything that the lawyers or my colleagues have
said in a televised oral argument in my court.
Chairman SPECTER. You maintained your same judicial demeanor, notwithstanding the presence of the cameras? That is a
leading question.
Judge OSCANNLAIN. Well, we certainly try to, and hopefully we
do.
Chairman SPECTER. Judge DuBois, how many cases were televised in your courtroom?
Judge DUBOIS. In my courtroom, only one. I approved three applications. Only one case, a product liability case which did not involve personal injuriesit involved the recall of a line of bottled
water
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Chairman SPECTER. What was the impact of cameras in the
courtroom, if any, on you?
Judge DUBOIS. The answer to that question is none on me, and
in that case, because of the rather bland nature of the case, the impact was positive. There was no negative impact at all. The parties
did not object, the witnesses did not object. Cameras did not focus
on the jurors, but I asked the jurors after they were empaneled
whether they had any objection to having television cameras there
and they replied no.
I should add
Chairman SPECTER. So why, with your sole experience with cameras in your courtroom being positive, do you come to a different
conclusion as a generalization?
Judge DUBOIS. First of all, that case was a case that was tried
on the first day of the program, July 1, 1991. As my experience
with the program and with attorneys who objected to cameras in
the courtroom expanded, I concluded that there was an effect on
some witnesses, on some jurors and on some parties.
Chairman SPECTER. But as a result of having cameras in the
courtroom?
Judge DUBOIS. Well, I think the effect of having cameras in the
courtroom is a telling effect. Let me give you an example. The Federal Judicial Center reported that a large percentage of the judges
concluded that there was an impact on witnesses, that witnesses
became more nervous. Jurors are told to watch the way a witness
responds to a question. If a witness is nervous because of cameras
in the courtroom, a juror might very well misinterpret that to mean
the witness is nervous because the witness is not telling the truth.
That is a dynamic that I never want to see happen in a courtroom
in which I am presiding.
Chairman SPECTER. It didnt happen in the case that you presided over where the cameras were present?
Judge DUBOIS. It was a rather bland case involving the recall of
bottled water.
Chairman SPECTER. Well, how about cameras for bland cases?
Judge DUBOIS. I dont think the media would go for that, Senator.
Chairman SPECTER. Well, give them the choice. Dont bar them
if it is something they might choose to do.
Judge DUBOIS. Senator, may I say this? And I am mindful the
lights are going on and I am mindful of your experience in the Supreme Court in the Navy Yard argument, and I was afraid that
today would be pay-back time for me and that I would be cutoff in
mid-word.
Chairman SPECTER. Time is not up. Give us a chance. Chief Justice Rehnquist, as you know, was looking for an occasion to cutoff
a lawyer in the middle of the word if.
Judge DUBOIS. Well, I thought you might try to do that to me
today. Thank you for not doing that, sir.
I am concerned that any compromise of an individuals right to
a fair trial, any intrusion on that right is not warranted because
I think we have open courtrooms now and the question is do we
need courtrooms to be more open. And I think if you can answer
that question by saying there would be no trampling of individual
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rights in trials, that is fine. But I dont think we can say that based
on the information that is presently available and I wouldnt want
to sacrifice the right to a fair trial in both civil and criminal cases
to make courtrooms more open. And in saying that, I want to add
that I certainly favor open courtrooms, but believe our courtrooms
are open now.
Chairman SPECTER. Well, my time expired in the middle of your
answer, so I am going to yield to Senator Sessions.
Senator SESSIONS. Take more time, Mr. Chairman, if you need
it.
Chairman SPECTER. No. I am going to stick to the time and
maintain our Committee record on that, but I will comment that
we are all devoted to a fair trial and we are not going to do anything that would impede on that. And I think the legislation which
Senator Grassley testified about leaves it open to eliminate the
cameras where the judge feels there would be an impingement or
where participants and parties to the trial object.
Senator Sessions.
Senator SESSIONS. Thank you.
Judge DuBois, the American ideal of justice is to create a climate
for the very fairest outcome in every case that comes in a court of
law in this country. Wouldnt you agree with that?
Judge DUBOIS. I certainly would.
Senator SESSIONS. We even give you two judges a lifetime appointment. We cant even cut your pay because we want an independent judge to preside over the trial who will take steps to make
sure that trial is conducted in a way that guarantees that extraneous emotional forces dont come together in a way that might adversely impact a fair decisionmaking process. Wouldnt you agree
with that?
Judge DUBOIS. I would, sir.
Senator SESSIONS. And in your opinion, based on your years on
the bench, you have concluded that cameras in the courtroom could
be an adverse factor in guaranteeing as fair an outcome as we can
possibly achieve?
Judge DUBOIS. That is correct, sir.
Senator SESSIONS. Looking at the polling data that they did in
New York to review their television coverage, it says they polled
and I think it is pretty startling, really. Forty-three percent of citizens would be less willing to serve on a jury if there were cameras
and 54 percent would be less willing to testify as a witness to a
crime if cameras were present. I think that is even more troubling.
A New York survey of voters conducted by Bill Bowers of Northwestern University found that 4 out of 10 potential victims would
be less willing to testify in a criminal case if cameras were present.
The Federal Judicial Conference study found that 64 percent of
participating judges in the pilot program reported at least to some
extent, as you noted, cameras make witnesses more nervous.
Do you agree? Are those polling data numbers consistent with
your experience as a judge and your own observations?
Judge DUBOIS. I agree with the conclusions. My experience isnt
broad enough to reflect specific percentages, but I believe every one
of the factors that you mentioned from the New York study and the
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Judicial Center study are factors that weigh against a fair trail and
should not be compromised to make our courtrooms more open.
Senator SESSIONS. Well, we just have to be careful. Trials are
critically important crucibles to ascertain truth. They are not for
entertainment; they are there to help decide correctly complex,
often emotional disputes between defendants and victims and prosecutors, and between civil litigants and that sort of thing.
Let me ask Judge OScannlain, now, if you do coverage of the appellate courts, does the coverage cover the whole hearing and then
when it is put on the six oclock news, do they just excerpt some
small part of it, and does that give you a concern that perhaps an
incorrect perception might be conveyed to the public?
Judge OSCANNLAIN. Senator, there have been a variety of experiences. Some of the cases in which I participated were video only,
with no audio, and snippets from that were used in the public
broadcasting special program about the Ninth Circuit.
In other situations, as I indicated, some of my colleagues will
vote not to grant permission unless there is a commitment by C
SPAN or whatever the particular media entity is that they would
run it on a gavel-to-gavel basis. So it would be the full 20 minutes
and a 10-minute argument, or the full 40, that kind of thing. That
is why I thought it was quite telling and quite impressive that
Senator SESSIONS. Let me just suggest that a local TV station
that might have an interest in it would not be obligated to show
the whole argument at six oclock. They could simply show one
snippet from it, is that correct?
Judge OSCANNLAIN. Yes, that is true, and that specifically happened in a case which was argued in San Francisco having to do
with a cross on public property. There was a lot of local interest
in it, and as a matter of fact the local Bay area television stations
did indeed show it on a snippet basis.
Senator SESSIONS. Mr. Chairman, my time is up.
Chairman SPECTER. Thank you very much, Senator Sessions, and
thank you very much, Judge OScannlain and Judge DuBois. There
are many, many more questions we could ask. We have your written statements. We have a very long third panel, so we are going
to thank you and we may be following up with some additional
questions for the record.
Judge OSCANNLAIN. It would be our pleasure. Thank you very
much, Mr. Chairman.
Judge DUBOIS. Thank you, Mr. Chairman.
Chairman SPECTER. We will now call panel threeMs. Barbara
Bergman, Mr. Peter Irons, Mr. Seth Berlin, Mr. Brian Lamb, Mr.
Henry Schleiff and Ms. Barbara Cochran.
Our first witness on this panel is Ms. Barbara Bergman, who is
testifying in her capacity as President of the National Association
of Criminal Defense Lawyers. She has been a professor of law at
the University of New Mexico School of Law. She worked as a staff
attorney for the public defender here in Washington, was associate
counsel for President Carter. She has a bachelors degree from
Bradley and a law degree from Stanford.
Thank you for joining us, Ms. Bergman, and the floor is yours
for 5 minutes.
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STATEMENT OF BARBARA E. BERGMAN, PRESIDENT, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
WASHINGTON, D.C.
Ms. BERGMAN. Mr. Chairman and distinguished members of the

Committee, as President of the 13,000-member National Association of Criminal Defense Lawyers, NACDL, I am honored to be
here today to share the associations views regarding the important
issue of cameras in Federal courtrooms.
While current rules do not permit cameras in Federal district
courts, NACDLs members have experience with televised proceedings in their State courts. And in discussing this issue recently
with our board of directors, it was apparent that there is no consensus within the defense community regarding the overall desirability of cameras in courtrooms in criminal cases. The position of
our association reflects that diversity of experience and opinion.
The Supreme Court has held that there is no constitutional right
of access for cameras in the courtroom. As a result, in criminal
cases the purported value of televised court proceedings must be
weighed against the accuseds constitutional rights to due process
and a fair trial.
The NACDL believes that S. 829 does not strike the right balance. We would like to see the bill amended so as to authorize cameras in district court criminal proceedings and interlocutory appeals only with the express consent of the parties. In all other
criminal matters coming before the United States courts of appeals
and the Supreme Court, NACDL favors access for cameras, and
there are many arguments on both sides.
To the extent that cameras in the courtroom promote greater
public understanding of the judicial process and the constitutional
protections that apply to that process, we generally support their
expanded use. Not unrelated is the notion that televised trials may
encourage greater preparation and a higher standard of professionalism.
But in the alternative, the arguments against cameras, there are
many that concern us a great deal. First is pressure on jurors. The
decision to televise a trial signals to the jury that their verdict is
likely to be scrutinized by the viewing public, and defendants are
less likely to receive a fair trial when jurors feel the need to reconcile their verdict with strong public sentiments in favor of a particular result.
As a member of Terry Nicholss defense team in the State capital
prosecution arising from the Oklahoma City bombing, we were extremely concerned about the possibility of strong community pressures being brought to bear on Oklahoma jurors if the court permitted cameras in the courtroom. We objected to the presence of
such cameras under Oklahomas rule permitting the defendant to
object to cameras and ultimately they were excluded.
While it is impossible to measure the precise impact cameras
may have had on that trial, the fact that some of the jurors have
refused to speak to the media and others did so over a year after
the verdict reinforced my belief that excluding cameras reduced at
least some of the community pressure on the jury in the small community of McAlester, Oklahoma. Finally, past television coverage
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may make it more difficult to select an impartial jury in case there
is ever a retrial.
We also share the concern about pressure on witnesses, that it
will discourage witnesses from testifying, that it may affect the
ability of them to testify in a way that doesnt distort what they
have to say. The concern we have is that it will affect the jurys
evaluation of their credibility.
We also have concern about pressure on the defendant from cameras that can affect the accuseds demeanor and willingness to testify. And more fundamentally, the prospect of extended media coverage may discourage the accused from exercising their right to
trial in the first place, and it is of particular concern in cases involving humiliating accusations or corporate defendants unwilling
to expose themselves to negative publicity.
It is also of particular concern in capital cases where evidence of
childhood sexual and physical abuse is frequently offered in mitigation. The prospect that such evidence may be broadcast across the
country may cause a defendant to hide such information even
though it could save his life. Finally, even when the accused is acquitted, the stain on their reputation is not easily erased and camera coverage may exacerbate this unwarranted punishment.
Given these concerns, the sponsors of S. 829 have wisely avoided
a rule authorizing unrestricted camera access. But rather than
placing the ultimate decision in the hands of the presiding judge,
we think the consent of the partiesthe accused acting with the
advice of counsel and the governmentshould be required before
cameras are permitted to televise criminal trials or interlocutory
appeals.
The positive or negative effects of cameras depend on the facts
and circumstances of each case. The parties who are familiar with
the witnesses who will testify, the evidence that will be offered and
other facts that might indicate the potential for prejudice are in the
best position to determine the appropriateness of cameras. Moreover, permitting the parties to withhold their consent avoids the
time-consuming distraction of litigation regarding the judges decision to permit or forbid that coverage.
While we support efforts to ensure more sunshine on our democratic institutions, that goal should not be allowed to eclipse the
fundamental purpose of a criminal trial, which is not education or
entertainment, but justice.
[The prepared statement of Ms. Bergman appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Ms. Bergman.
Our next witness is Professor Peter Irons, Professor Emeritus of
Political Science and Director of the Earl Warren Bill of Rights
Project at the University of California in San Diego. Professor Irons
has authored six books on the Supreme Court and served two
terms on the national board of the ACLU. He has an undergraduate degree from Antioch, a Ph.D. in political science from
Boston University, and a law degree from Harvard.
Thank you very much for coming in today, Professor Irons, and
the floor is yours.
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STATEMENT OF PETER IRONS, PROFESSOR OF POLITICAL
SCIENCE, EMERITUS, UNIVERSITY OF CALIFORNIA AT SAN
DIEGO, SAN DIEGO, CALIFORNIA
Mr. IRONS. Senator Specter and Senator Sessions, I am very glad

to be here this morning. I am going to limit my commentsand my
statement is part of the recordif I might.
Chairman SPECTER. Your full statement will be made a part of
the record, as are all of the statements.
Mr. IRONS. I would like to limit my comments to television coverage of the Supreme Court, and I base that on my experience with
providing to the public access to the audio arguments, the audiotape arguments before the Supreme Court. Let me just give a little
history behind that.
Back in 1955, Chief Justice Earl Warren initiated the
audiotaping of Supreme Court oral arguments. I think he did so because he recognized in the past term the historic importance of arguments in Brown v. Board of Education, both the first and the
second cases. He felt that keeping those arguments on tape and
making them accessible to the public would serve not only an historic, but a civic benefit particularly for students.
Now, until 1986 there was no restriction on access to those tapes.
But in 1986 when Fred Graham of CBS News obtained a copy of
the Pentagon Papers oral argument and played excerpts of it on
television and radio, Chief Justice Burger imposed restrictions on
access to those tapes, limiting it to what were termed private research and teaching.
I decided in 1991, having heard some of these tapes when I was
in law school, that it would be a good educational project to make
them available to the public, particularly for use in schools. So I
obtained copies of 23 historical oral arguments, including Roe v.
Wade; Miranda v. Arizona; the Watergate tapes case, United States
v. Nixon; and the Pentagon Papers case.
Simply to illustrate, with the Committees indulgence, I would
like to just push a button right here and for less than a minute
bring you into the Supreme Court chamber for part of the argument by Thurgood Marshall, then chief counsel for the NAACP
Legal Defense and Education Fund, in the historic case of Cooper
v. Aaron, and I hope this will be audible.
[Audiotape played.]
Mr. IRONS. Now, I played that, Mr. Chairman, to
Chairman SPECTER. Mr. Irons, I dont think we all heard that.
I will give you a little extra time. Summarize what was just played
on the tape.
Mr. IRONS. All right. It was an argument by Thurgood Marshall
about the experiences of the African-American children in Little
Rock when they were being escorted into the schools through mobs
and how
Chairman SPECTER. And what case was this in?
Mr. IRONS. This was in Cooper v. Aaron, in 1958.
Now, my point here is very simple that these tapes have been
played in thousands and thousands of school rooms, and I would
be glad to enter this into the record, as well, a copy of a set of those
tapes. My own experience and the experience of hearing from literally hundreds of teachers and students who have heard these
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tapes is that they would very much appreciate the chance not only
to hear these arguments, which very few of them have been able
to witness in person, but also to see the arguments in the Supreme
Court. There is nothing, I think, more educational than that opportunity, making it available to the public, and particularly to students, to do that.
This past Monday, I was talking to a class in judicial process at
Missouri State University in Springfield and I asked the classand
they had heard excerpts of these tapes, about 50 students, and I
said how many of you would really appreciate the opportunity to
be able to witness these arguments in person on video to see the
lawyers argue the cases and the judges ask questions. And there
was a unanimous show of hands in support of that project.
So I think, in conclusion, Mr. Chairman, Senator Leahy and Senators Sessions, that there would be a great public benefit. I also
have available a statement that I received yesterday by e-mail from
Chief Judge Mary Schroeder, of the Ninth Circuit, on which Judge
OScannlain sits, I think backing up his testimony, but also saying
that In my opinion, the Supreme Court and the public would benefit from at least experimenting with televised oral arguments in
cases that, like the California case, are of intense public interest
and presented by counsel of the highest ability.
I would like to submit that statement as well.
Chairman SPECTER. It will be made part of the record.
[The prepared statement of Mr. Irons appears as a submission
for the record.]
Chairman SPECTER. Thank you very much, Professor Irons.
We now turn to Mr. Seth Berlin, a partner in the law firm of Levine Sullivan Koch and Schulz. He has handled a variety of First
Amendment, defamation, privacy and reporters privilege cases. He
has been nominated to the governing Committee of the American
Bar Associations Forum on Communications Law. He has a magna
cum laude degree from Brown University and is a cum laude graduate of the Harvard Law School.
The floor is yours, Mr. Berlin.
STATEMENT OF SETH D. BERLIN, LEVINE SULLIVAN KOCH
AND SCHULZ, LLP, WASHINGTON, D.C.
Mr. BERLIN. Thank you, Mr. Chairman and members of the Committee. I really appreciate the opportunity to testify today.
At a fundamental level, ours is a Government in which the people are sovereign and therefore possess the right to observe our
Government in operation. As the Supreme Court has explained,
and as Senator Grassley alluded to in his testimony this morning,
people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. Simply put, our democracy works better
when people understand how their Government institutions operate, and our Government institutions work better when their operations are understood and scrutinized by the people.
We have a constitutionally required right of access to court proceedings and it cannot be seriously disputed that camera coverage
will materially further most peoples exercise of that right. The
simple truth, as the Florida Supreme Court put it in authorizing
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cameras into that States courts back in 1979, is that newsworthy
trials are newsworthy trials and they will be extensively covered by
the media both within and without the courtroom, whether cameras are permitted or not.
It makes a lot more sense to provide the public with a picture
of the actual in-court proceedings rather than having the public
getting its information about trials solely from second-hand summaries, or worse, potentially prejudicial and inflammatory characterizations by interested third parties.
Next, I would like to point out that there is generally no constitutional bar to camera coverage. Following the Supreme Courts
decision in Chandler v. Florida, courts confronting this issue routinely have concluded that television coverage does not interfere
with the due process rights of a criminal defendant or of other parties or participants in a court proceeding.
I would also like to talk about the benefit of at least affording
judges discretion in this area. A number of courts that otherwise
would have found camera coverage warranted have felt constrained
by either Federal Rule of Criminal Procedure 53 or by the Judicial
Conference guidelines that prohibit camera coverage in trial courts.
For example, in General Westmorelands landmark libel trial
against CBS, the parties consented to CNNs televising the proceedings. Then-trial Judge Leval also made extensive findings that
favored camera coverage. He nonetheless denied CNNs petition
based on his conclusion that the rules of the Judicial Conference
and of his own court left him no choicea determination that was
then upheld by the Second Circuit.
Earlier this fall, a Federal district court in Pennsylvania reached
a similar conclusion, relying on the Judicial Conference guidelines.
The court denied a request by Court TV to televise the trial over
the Dover, Pennsylvania School Board policy of suggesting the
study of intelligent design along with the study of evolution, despite the profound national interest on the subject, the consent of
all of the parties and the fact that the trial involved none of the
usual potential objections that people raise in authorizing camera
coverage.
Legislation granting judges at least discretion to authorize camera coverage in appropriate circumstances may well have yielded
a different result in these important matters and many other important controversies of the future.
Finally, I want to talk briefly about the experience of those
courts that have authorized camera coverage. Both the Federal Judicial Center study of a Federal court pilot program and similar
studies of experimental programs in a large number of States have
confirmed that camera coverage does not interfere with the fair
and orderly administration of justice.
Moreover, the Federal courts are increasingly using cameras for
many purposes other than broadcasting court proceedings to the
public. Judge OScannlain talked about the Ninth Circuits internal
videotaping system. The trial court in the Moussaoui prosecution
authorized an audio-visual feed to a nearby overflow courtroom,
and in response to the change of venue in the Oklahoma City
bombing trial, Congress authorized closed-circuit televising of trials
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to crime victims where the trial is moved more than 350 miles and
out of State.
Last, there is the overwhelmingly positive record of camera coverage in the State courts. All 50 States allow at least some camera
coverage of judicial proceedings. The best evidence that these rules
work is that States have continued to operate under them, in many
cases for decades. California continued its practice of televising
State court proceedings even after the O.J. Simpson trial left some
to question that policy. And just last week, the Florida Supreme
Court unanimously rejected efforts to limit its rules allowing camera coverage of court proceedings throughout that States court system.
To sum up, permitting Federal court proceedings to be televised
will dramatically enhance the publics exercise of its right of access
to judicial proceedings. Congressional action will open the doors of
the Nations Federal court system to millions of Americans who are
otherwise unable as a practical matter to view these proceedings.
[The prepared statement of Mr. Berlin appears as a submission
for the record.]
Chairman SPECTER. Thank you very much, Mr. Berlin.
Our next witness is the distinguished Chief Executive Officer of
CSPAN, and has been since CSPAN was founded in 1979. He
has had a regular on-air presence with his Booknotes up until
last year and continues to have an on-air presence, as I can personally testify to, having been interviewed by Mr. Lamb as recently as
August of this year.
Prior to being a co-founder of CSPAN, he worked as a freelance
reporter for UPI radio, a Senate press secretary and a White House
telecommunications policy staffer. In 1974, Mr. Lamb began publishing a bi-weekly newsletter called The Media Report and was
Washington bureau chief for Cablevision magazine. A graduate of
Purdue University, he majored in speech, where he received his
bachelors degree.
Just a little anticipatory on the testimony, CSPAN covers Senate hearings with regularity and I, for one, hear an enormous
amount of comment about it. People talk about CSPAN with attentiveness only parallel to professional sports as to what this individual has observed.
The next few minutes are yours, Mr. Lamb.
Senator LEAHY. Mr. Chairman, before he starts, I know how
much people watch this and actually watch Mr. Lamb because I
was walking through an airport once and somebody came up and
said, Mr. Lamb, how long have you been wearing glasses? I said,
no, no, he is a lot younger and he doesnt have to wear glasses.
STATEMENT OF BRIAN P. LAMB, CHAIRMAN AND CHIEF
EXECUTIVE OFFICER, CSPAN NETWORKS, WASHINGTON, D.C.
Mr. LAMB. Senator Leahy, they do the same thing to me often

in airportsSenator Leahy, can I have your autograph? And, you
know, I have to disappoint them and tell them I am not you. I have
gotten that, by the way, on Senator McCain and Senator Glenn,
and I can go down the list of the number of people that I am
thought to be.
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I was in a classroom a couple of weeks ago, some 16-year-old juniors, talking about CSPAN and what we do in government and
civics. One of the students put her hand up and asked meand I
dont remember why because it is an odd questionshe said where
do they put the jury in the Supreme Court room? And it struck me,
as Professor Irons was talking about the educational value of all
of this being one of the more important reasons why we are even
doing this.
We have a commitment to make here this morning, and we have
done it before, and that is basically if the Supreme Court will ever
allow its oral arguments on television, we will carry all of them
from start to finish. We will find a place to put them all.
Judge OScannlain was talking about members of the Ninth Circuit often want gavel to gavel. I personally am not in favor of enforcing gavel to gavel. I think the news media plays an enormously
important role in interpreting, and I often find it fascinating because you cant really find out what the Supreme Court members
think about television. They dont meet the public very often. As
the Chief Justice says, they have an open mind and you never can
really find out if they have ever voted on it or not.
But I often thought it was odd because they will allow a member
of the print press to come in and sit in the press area, or a television reporter to sit in the press area, walk outside, stand in front
of a camera and interpret everything that went on in the courtroom. But giving us a chance to see how it really happens seems
to be something that they cant agree to.
We are interested in finding a place to carry every argument;
there are only 80. If you look at the statistics about the Supreme
Court, there are only 50 seats in the Courtthere are 300 altogether, but only 50 where just an ordinary citizen who comes to
this town who wants to watch an entire oral argument can sit and
watch. So you have to get in line and you have to take your
chances.
There are 12 seats set aside for people to sit for 3 minutes, and
that hardly does much for you other than being able to see what
the Court looks like. The rest of the seats are determined by either
who is before the Court in an oral argument or where the Justices
want to fill those seats with people that they know.
So this is just like it was with the Senate in 1986 and the House
in 1979an extension of the gallery, an opportunity to see something that is usually an hour in length. And that particular event
isnt going to determine how they vote. They go behind closed doors
for that, and that is fine with us.
I would be glad to answer any questions, and you have our commitment that we will carry all of these oral arguments if we are
allowed to.
[The prepared statement of Mr. Lamb appears as a submission
for the record.]
Chairman SPECTER. Well, thank you very much, Mr. Lamb. We
will have some questions for you in a few minutes after we hear
from Mr. Schleiff and Ms. Cochran.
Mr. Henry Schleiff is Chairman and CEO of Court TV Networks.
Before taking on that position, he was active in a number of key
posts in the television industry, including Executive Vice President
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for Studios USA, executive producer at Viacom, Senior Vice President for Viacom, and had been Senior Vice President for HBO.
He began his career as a law clerk to Federal Judge Gurfein of
the Southern District of New York. He has a bachelors degree cum
laude from Penn and a doctorate in law from the University of
Pennsylvania Law School, where he was an editor of the law review.
Thank you for joining us, Mr. Schleiff, and we look forward to
your testimony.
STATEMENT OF HENRY S. SCHLEIFF, CHAIRMAN AND CHIEF
EXECUTIVE OFFICER, COURTROOM TELEVISION NETWORK,
LLC, NEW YORK, NEW YORK
Mr. SCHLEIFF. Thank you very much, Chairman Specter, Ranking Member Leahy and Senator Sessions. On behalf of our Nations
only television network dedicated to providing a window on the
American system of justice, I am delighted and honored to testify
before your Committee which is considering legislation that would
provide our American citizens, both litigants and viewers, with the
benefits of televising the proceedings of our Nations Federal
courts.
This Committee, in particular, is well aware of the fact that our
trials and courtroom functions are open to the public, and therefore
to the press. Indeed, our Founding Fathers themselves well understood the importance and need for this openness. It is not by accident that they built a system of justice on really four great pillarsan independent judiciary, the right to trial by jury, rights of
due process for defendants, and a court system which would be
open to the public where, as Justice Oliver Wendell Holmes well
said, quote, Every citizen should be able to satisfy himself with his
own eyes.
I do believe that all citizens today, not just the print press or
those very few who can fit into a courtroom, should be able to
watch their judicial system in action, and therefore that the few
lingering concerns about electronic coverage or why it should be denied the equal access accorded print coverage are increasingly specious in this the 21st century.
Indeed, there can be no reasonable argument with the fact that
advances in technology such as a smaller and unobtrusive camera
merely expand the experience of being in the courtroom to the
greater community, thereby making public trials truly public, as
was intended by the Founders.
Certainly, our system of jurisprudence, and especially our constitutional history of providing public trials is an essential element
of our democracy, and not only of our democracy but of freedom.
Just as the United States today represents a beacon of freedom, we
should also allow that light to shine on the example that our own
courtrooms provide. Our system is not perfect, but it is one of
which we can and should be proud, especially in our ongoing efforts
to preserve justice and freedom around the world.
The importance to our own citizens of allowing cameras in the
courtroom is really three-fold. One, it enhances public scrutiny of
the judicial system which helps assure the fairness of court proceedingsa concern of Senator Sessions and one which we all
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share. This, in turn, serves to further promote public confidence in
our third branch of Government. And, three, it does increase our
citizens knowledge about how this branch actually functions.
Because television is the principal means through which most
people get their news, it only follows that the same vehicle be employed as a tool to inform and to educate the electorate in this way.
Justice Louis Brandeis said it far more succinctlysunshine is the
best disinfectant. We agree, and we vigorously support the proposed legislation which would open courtrooms to cameras and indeed let the sunshine in.
Certainly, camera coverage of Government proceedings is nothing
new in the United States. Both Houses of Congress have already
opened their chambers to television cameras. This legislation would
then merely provide the third branch of our Federal Government
to be given the opportunity to take a similar step.
Of course, in the proposed legislation which Court TV has long
supported, trial judges are also to be given the discretion in their
courtrooms to determine whether to permit a camera in a particular trial, which is a most important and practical safeguard.
Today, there is certainly growing consensus in the United States
that having cameras serves the public interest. Some 43 States permit cameras in their trial courts. Since 1991, Court TV has covered
more than 900 U.S. trials and legal proceedings, providing more
than 30,000 hours of courtroom coverage. Moreover, in our 15 years
of such coverage, no judgment has ever been overturned because a
camera was in the courtroom.
On the contrary, a myriad of studies over the past two decades
tracking the impact of cameras has indicated that they do not disrupt or otherwise interfere with the proceedings. If anything, cameras can help keep newspaper coverage, or for that matter sound
bites, whether we read them in the papers or hear them on the
local news, in context and thus provide the least sensational and
most unfiltered form of coverage. For this proposition, I will merely
cite Senator Schumers eloquent analysis of the Amadou Diallo
trial.
Finally, I should note that some justices of the Supreme Court
have over the years claimed that allowing cameras in their courtroom would cause them to lose some degree of their personal anonymity or perhaps even lessen the Courts moral authority. However, I would submit to you that where no witnesses or other parties are involved, just lawyers arguing to other lawyers, albeit lawyers dressed in robes, about issues which may fundamentally affect
our daily lives, be it affirmative action, personal choice or the like,
the potential loss of anonymity would seem to be a fair price to
pay.
Chairman SPECTER. Mr. Schleiff, could you summarize the balance of your testimony, please?
Mr. SCHLEIFF. Yes. I would say only in conclusion that we do
think that such testimony to be seen at the Supreme Court level
would do nothing but actually further the dignity with which that
Court is properly held. I would say, finally, that we do think that
the American public deserves truly to see the judicial system in action at all levels and to have Federal courtrooms open to camera
coverage.
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[The prepared statement of Mr. Schleiff appears as a submission
for the record.]
Chairman SPECTER. Thank you very much, Mr. Schleiff.
Our next and final witness on this panel is Ms. Barbara Cochran,
President of the Radio-Television News Directors Association. She
has a very distinguished career in 28 years significantly in Washington, D.C., Vice President and Bureau Chief for CBS News, executive producer of NBCs Meet the Press, Vice President of News
for National Public Radio, managing editor of the Washington Star.
She has a bachelors degree from Swarthmore and a masters degree from the Columbia University Graduate School of Journalism.
Thank you for joining us, Ms. Cochran, and we look forward to
your testimony.
STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIOTELEVISION NEWS DIRECTORS ASSOCIATION, WASHINGTON,
D.C.
Ms. COCHRAN. Thank you very much, Mr. Chairman, Senator

Leahy and Senator Sessions, for inviting me to appear today on behalf of the Radio-Television News Directors Association and the
3,000 television and radio journalists who are its members.
RTNDA supports the Sunshine in the Courtroom Act and we welcome Chairman Specters legislation to open the Supreme Court to
television coverage. We believe both bills serve the important public policy goal of instilling trust in the Federal judiciary by allowing
Americans to witness for themselves what transpires within the
court system.
It is simply not right that Americans form their opinions about
how our judicial system functions based on the latest episode of
Judge Judy or CSI. Nor does it make sense that the nominees
for the Supreme Court are widely seen in televised hearings conducted by this Committee, only to disappear from public view the
moment they are sworn in as justices.
RTNDAs members are the people who have demonstrated that
television and radio coverage works at the State and local level,
and they can make it work on the Federal level. The interests of
our citizens are not fully served in this day and age by opening
Federal courtrooms to a limited number of observers.
By using todays technology, citizens can see and hear for themselves what occurs inside the courtroom. Technological advances
have minimized the potential for disruption to judicial proceedings.
Cameras available today are small, unobtrusive and designed to
operate without additional light. Moreover, the electronic media
can be required to pool their coverage, cutting down on the equipment and personnel in the courtroom.
The presence of cameras in many State courtrooms is routine
and well-accepted. All 50 States, as we have heard already, now
permit some manner of audio-visual coverage of court proceedings.
RTNDA members have covered hundreds, if not thousands of State
proceedings across the country without incident and with complete
respect for the integrity of the judicial process. To the best of our
knowledge, there has not been a single case since 1981 where the
presence of a courtroom camera has resulted in a verdict being
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overturned or where a camera was found to have any effect whatsoever on the ultimate result.
State studies show that reporting on court proceedings both by
broadcast and newspaper outlets is more accurate and comprehensive when cameras are present. Unfortunately, the ban on cameras
in Federal proceedings means the public sees what takes place on
the courthouse steps, not what transpires where it matters most,
inside the courtroom. In fact, because of the Federal ban, American
citizens have been deprived of the benefits of firsthand coverage of
significant issues such as whether the Government can take possession of a persons private property and transfer it to developers
to encourage economic development, whether executing juveniles
constitutes cruel and unusual punishment, and whether the term
under God in the Pledge of Allegiance is unconstitutional.
In contrast, just last month people throughout the world were
able to turn on their television sets to witness the opening of the
trial of Saddam Hussein. Iraqi officials apparently understood how
critically important it is to make this process public to the widest
possible audience.
During the 2000 Presidential election dispute, RTNDA fought
hard for televised coverage of the arguments before the Supreme
Court and we were gratified when Chief Justice Rehnquist made
the historic decision to release audio tapes at the conclusion of the
argument. We were also very pleased to hear our new Chief Justice
express to this Committee his openness to cameras in the Supreme
Court. The release of audio tapes by the Supreme Court has educated the public and caused no harm. What is needed now is consistent and complete audio-visual coverage.
Federal courts have not on their own motion taken steps to permit electronic coverage of their proceedings. Therefore, RTNDA respectfully submits that the time has come for Congress to legislate.
This proposed legislation has the potential to illuminate our Federal courtrooms, demystify an often intimidating legal system and
provide an appropriate level of public scrutiny. It is time to provide
unlimited seating to the workings of justice everywhere in the
United States.
Thank you, Mr. Chairman, and I ask that some supplementary
material be submitted along with my written statement.
[The prepared statement of Ms. Cochran appears as a submission
for the record.]
Chairman SPECTER. Thank you, Ms. Cochran. We will be glad to
have the supplementary material and put it in the record.
We now go to the five-minute rounds for members.
Professor Irons, do you think it is an appropriate matter for the
Congress to act legislatively to open up the Supreme Court to television coverage?
Mr. IRONS. Yes, I do, Senator Specter.
Chairman SPECTER. Do you have any doubt as to the constitutionality of such action?
Mr. IRONS. No. As you pointed out in your opening statement,
Congress exercises considerable oversight, direction of the Federal
courts, the composition, the procedures, et cetera. I think this falls
within their purview.
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But one thing I would like to note, since Ms. Cochran just mentioned the audiotaping of the Bush v. Gore arguments, is the response to Chief Justice Rehnquist to that experience. He was talking with Fred Graham afterwards. They were at a party together
and Fred quoted him as saying Rehnquist said he was very pleased
with the reception that the playing of the Courts audio tapes had
gotten. He said he watched it on television and he thought it
worked well, the way they put up the pictures that identified the
justices and the lawyers who were speaking. He thought that the
coverage communicated to the public what was happening in an extremely important case and he was pleased.
So my point is that the next step beyond thatsince the pictures
were put up, anonymity, of course, disappears the minute those
pictures are upwould be best served
Chairman SPECTER. I am sorry to interrupt, Professor Irons, but
we have a lot of ground to cover.
Mr. IRONS. Yes.
Chairman SPECTER. Let me move to Mr. Lamb. Mr. Lamb, would
CSPAN be in a position to cover the full televising of the Supreme
Court? Some of the justices have raised objections about snippets
here and there. Would there be anything to lead CSPAN to do
other than total coverage, just as you do now for the Senate and
the House of Representatives?
Mr. LAMB. No. It would be exactly as we dolike this hearing
today, the whole hearing will be on CSPAN. It would be the same
thing with every oral argument.
Chairman SPECTER. What information do you have as to the ratings for CSPAN? How many people watch CSPAN?
Mr. LAMB. We dont take ratings. We do surveys from time to
time to find if there is anybody out there watching. And it is really
interesting because we are the only network like it and we have
no idea on a quarter-hour basis who is watching.
We have been able to identify that out of a country of almost 300
million now, about 10 percent of the society is interested on a daily
basis in the kinds of things that you are doing and what we are
covering. They come to us all the time to see if there is something
there of interest to them. There are another 3 in 10 people who are
interested when things get a lot of national attention and they will
come to us. Then there are 6 in 10 people that never watch. But
it would make sense to you if you just look at the voting numbers
that only about half the people vote in a Presidential election. So
I suspect that most people that dont vote wont watch what we do.
Chairman SPECTER. You now have CSPAN3, where you make
selections as to what is going to be shown, and some very wise
judgments from what I have seen. For example, you covered our
hearing yesterday on Saudi Arabia.
Senator LEAHY. A brilliant decision.
Chairman SPECTER. I have an instinct that CSPAN3 gets more
viewing than 1, which has the House, and 2, which has the Senate.
Any comment?
Mr. LAMB. I dont know. CSPAN3 is not in nearly as many
homes as 1 and 2, and it is on the digital tiertechnical languagewhich means that people have to go after it and have to
find it. But I think as times goes by, as the whole television world
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is going to change, people will have the same access to CSPAN3
as they do to the other two networks.
Chairman SPECTER. I have a question for the other panel members which is a big one based on the testimony of Judge DuBois,
who was concerned about how television would impact at a trial
and the statistics which Senator Sessions cited about jurors being
less willing to serve. I thought Judge DuBois made a very telling
point about witnesses being nervous being televised, and that
might impact on jury evaluation.
So I would like to ask the four of you, because my time is going
to expire in just a few seconds, how you respond to the concerns
which Judge DuBois and Senator Sessions raised as to the ability
to guarantee a fair trial if it is televised. I will start with you, Ms.
Bergman.
Ms. BERGMAN. Yes, Senator Specter. I think our proposal is designed to address that, and that is the consent of both parties, both
the defense counseland I address only criminal casesand the
Government would be required before televising of the trial would
be permitted, because those are the people who know the case the
best. They know the witnesses, they know the evidence, they know
the issues that may arise. By giving those parties the opportunity
to give consent or to not give consent, they are in the best position
to guarantee that the trials are fair, and they can take into account
those concerns about jurors, the concerns about the witnesses, and
the concerns about the impact on the defendant as well.
Chairman SPECTER. Mr. Berlin.
Mr. BERLIN. Thank you, Senator. I think that the experience of
the State courts that have trial coverage with cameras which is
now a very broad experience, in some cases lasting decades, demonstrates that these concerns are not to be completely overlooked,
but can be easily managed.
The bill that is currently before the Committee which affords
trial judges discretion to handle this has built into it protections on
this issue. In particular, if a judge is exercising discretion, the
judgeand I would submit with no disrespect to Ms. Bergman that
the judge is actually in the best position to balance all of the interests that are before them in a court; that sometimes parties have
a particular interest that may or may not be actually consistent
with what is the appropriate to do, and that that overwhelmingly
record really demonstrates that this is possible to do without interfering with the fair and impartial administration of justice.
When criminal defendants and other parties have challenged on
appeal the presence of cameras, there is a very strong record of
courts saying that they have not, in the manner that they have
been used, interfered with the operation of the trial court. And
based on that experience, I think those concerns may be a bit overstated.
Chairman SPECTER. Mr. Schleiff.
Mr. SCHLEIFF. Yes, I agree. I think the most recent New York
study actually spoke to that very point, and I quote, Witness intimidation is neither borne out by the record nor sufficiently strong
to warrant barring cameras from the courtroom across the board.
I think it is exactly the judges discretion which has to be used and
I think which is appropriately provided for by this legislation.
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Chairman SPECTER. Ms. Cochran.
Ms. COCHRAN. Yes. I agree that the important thing about this
bill is that it gives the discretion to the judge, who is in the best
position to make the decision about whether cameras should be admitted or not. I also would refer to the State experience. Some
States have been allowing cameras into trials for as much as 20
years and there have not been the problems that are feared.
Chairman SPECTER. Thank you.
Professor Irons, my time has expired, so I dont have time to ask
you a question now, but I interrupted you. Keep that thought in
mind because I am going to come back to you.
Mr. IRONS. OK.
Chairman SPECTER. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman.
I just want to make absolutely sure I understand, Professor, your
answer to Senator Specter because he was asking a question I was
concerned about. You see no problem with the constitutionality?
Mr. IRONS. No, I dont, Senator Leahy.
Senator LEAHY. I dont either, but I just wanted to get that on
the record.
Ms. Bergman, am I correct that some in the defense bar are for
the idea of the cameras and some are opposed?
Ms. BERGMAN. There is a diversity of opinion depending upon
what court we are talking about. Generally, for appellate argument
or Supreme Court argument, the defense barat least our board
of directors didnt have any major opposition to that at all. Our
concern is with the impact on jurors, witnesses, defendants at the
time of trial.
Senator LEAHY. That also requires some sense on the part of the
trial judge not to allow it to turn into a circus. I mean, a trial judge
can easily, for example, protect the identity of jurors. I mean, you
can easily set it up in such a way that jurors faces will not be
shown, or any reaction of jurors during a trial. Is that not correct?
Ms. BERGMAN. Senator Leahy, there are steps that can be taken
to try to provide some safeguards to protect the identity of jurors,
but that does not address the concerns about witnesses who will
refuse to come forward, who will refuse to testify. It does not address the concern of the impact on witnesses when they testify and
how it may affect their demeanor in the courtroom and how they
present their testimony.
And it doesnt deal with the issues of the very intimate, private
types of information that if people think it is going to be televised
nationally they are not going to want to testify. Or in some cases
you will have situations with a defendant who will say I dont want
that presented because I dont want that broadcast, and so it is
going to have an impact that cannot be evaluated merely by protecting identities of jurors.
Senator LEAHY. We could discuss it further. Having defended
cases and having prosecuted cases, I still come down on allowing
the public to know.
I might ask Mr. Lamb, as far as keeping down the intrusiveness,
we were halfway through this hearing before I realized there is a
robot camera here in front of me going back and forth. That is relatively easy to do, is it not, just from a technical point of view to
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cut down on the intrusiveness of cameras, which doesnt go to Ms.
Bergmans question, of course, of having yourself seen when you
are testifying? But at least as far as conducting a trial, you can
lower the intrusiveness of cameras.
Mr. LAMB. I think Henry Schleiff would be better athe has
done a lot more courtrooms than we have. But when we are talking
about the Supreme Court, they undoubtedly, if they ever get to television in the Court, would want to operate their own system just
like the Senate and the House do. And you can basically hide the
cameras, make it very easy, and people who go before the Court
wont even know there are cameras in the room.
Senator LEAHY. Justice Scalia recently noted on CSPAN that he
wasnt concerned about gavel-to-gavel coverage of oral arguments,
but was concerned that cameras take these 15-second out-takes
that can distort rather than inform the public. Isnt this really a
question of whether the press acts in a responsible way?
I remember during the Michael Jackson trial, every night I was
so glad to see that genocide in Darfur had obviously ended because
the national press didnt bother to cover that anymore. They had
this one molestation case out in California.
Isnt that a question for the media and their own responsibility?
Mr. LAMB. As I said earlier, the justices have a different view of
the electronic press compared to the writing press. I just dont understand how you can delineate between the two, but they do. Justice Scalia has a very unusual view of what television ought to do.
He likes the idea of gavel-to-gavel, doesnt like the snippets, and
even when he goes out to speak, he will often say if there are television cameras in the room, I wont speak.
We had a little bit of openness earlier this year for about three
sessions, but it has been a tough go. We have had public comments
about all this and have great disagreement with him. I just think
you cant delineate between the two. The First Amendment applies
to everybody.
Senator LEAHY. As Ms. Cochran stated earlier, you get this great
view of justices during our hearings, as we will with the latest
nominee in January, but then the marble walls close in.
Isnt it true, Ms. Cochran, that there are a lot of examples where
coverage has worked very well? For example, I was one of the ones
who urged the Attorney General to make coverage available for the
families in the Oklahoma City trial because the trial was appropriately moved and a change of venue. But the families who wanted to watch the trial werent able to pick up and go, too.
Wouldnt that be an example of how all sense of justice for the
victims and everybody else was served?
Ms. COCHRAN. Yes. I mean, the easiest way to provide access to
the widest number of people is through bringing a camera into
court, and that is an excellent example. The families were able to
see what was taking place in the courtroom and it didnt appear
to have any of the intimidating effects.
Our members work with judges all the time on the ground rules
for coverage. They wont show jurors. If there is a witness whose
testimony needs to be taken in privacy, that is something that the
judge can order, and so on. So all of these things can be worked
out. But I think the important thing to remember is that trials
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were designed by our Founding Fathers to be public, and so concerns about embarrassment and that kind of thingthese trials
are public anyway and the presence of a camera is not going to
make a significant difference.
Also, with your indulgence, I would like to address the snippets
issue, if I may.
Senator LEAHY. Go ahead.
Ms. COCHRAN. We prefer to call them sound bites or excerpts.
The proceedings are going to be covered by the press anyway.
Newspaper reporters are going to take selected quotes. Television
reporting is going to use selected quotes. And if there are cameras
present, then the quotes that are used will be the actual words as
they were delivered by the people delivering them rather than having it be a mediated, second-hand account of what was said. So it
really enhances the accuracy of the reporting rather than taking
away from it.
Senator LEAHY. Thank you, Mr. Chairman. I think these are valuable hearings. I thank the panel.
Chairman SPECTER. Thank you very much, Senator Leahy.
Senator Sessions.
Senator SESSIONS. Ms. Bergman, I think you are alone in this
group.
Ms. BERGMAN. I feel alone, sir.
Senator SESSIONS. A good defense counsel is used to that sometimes.
Ms. BERGMAN. I am.
Senator SESSIONS. Under the legislation as you read it, the
Grassley bill, do the parties themselves have any ability to object?
Ms. BERGMAN. My understanding is that it is a decision that the
judge has the discretion to make, and I would assume the parties
would have an opportunity to be heard on it, but ultimately would
have no right to object to keep the cameras from actually coming
in.
And it raises another concern, Senator, which is that in that
whole process, if the parties have grave concerns about the impact
this is going to have, it is going to require hearings before the
judge to present this evidence, to raise this issue, to potentially disclose defense theories that counsel would prefer not to be disclosing
at that stage.
It raises the possibility of increased litigation and taking, quite
frankly, time away from the trial lawyers preparation and work on
the trial rather than focusing on this peripheral issue. That was a
concern we had in the State capital prosecution of Terry Nichols,
and luckily we were able to have a professor from Kansas who
came in to litigate that issue for us because it ended up being a
writ all the way up to the Oklahoma Supreme Court and it took
a lot of time and energy that could have been better spent in other
ways.
Senator SESSIONS. And if a defendant in a civil or criminal case,
or even a plaintiff is threatened, lets say, that we are going to call
witness such-and-such and that witness is going to say horrible
things about you if you go to trial and you challenge us and you
force us to go to trial, do you think it is a quantitative difference
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that that might be videotaped and then might be on the evening
news as compared to maybe being reported in the newspaper?
Ms. BERGMAN. Absolutely, I think it makes a tremendous difference when it is broadcast with a camera in the courtroom. Putting it on the evening news is qualitatively different in terms of the
nature of the impact of that, and I think it impacts in several
ways. One is the fear that a witness will be called to say certain
things. The other is the aspect of I dont want to put someone
through testifying and being televised and having to talk about
those things.
I have been involved in capital cases where there were defendants who did not want very painful information presented by relatives, friends, family members. And it was an extreme effort to get
them to agree to do that, and then if they thought it was going to
be televised nationally, I know it would have made a tremendous
difference.
Senator SESSIONS. And is it your experience, as it has been mine
as a prosecutor for quite a number of years and a defense attorney
on occasion, that some of the key things you have to do is just
spending time holding the witnesses hands? They are just terrified.
Ms. BERGMAN. Absolutely.
Senator SESSIONS. And if they are told they are going to be on
television, maybe national television, do you think it adds to the
terror and concern that they face?
Ms. BERGMAN. It would just magnify it astronomically.
Senator SESSIONS. You have said that parties have the right to
object. Does that include the prosecutor?
Ms. BERGMAN. Yes, sir.
Senator SESSIONS. That is good.
Thank you, Mr. Chairman. I would just say this has been an excellent panel that has raised some very important issues.
I think there is a remnant, Mr. Lamb, out there that keeps up
with America. I call them a patriotic remnant that know more
what goes on here than we do. We have got this Committee just
down to you and me, Mr. Chairman, and here we are. We are sitting here, but some people are watching every word of this, maybe
more than the Senate, and they are forming opinions with less
stress and pressure on them than we have and I think it is
healthy. I really do believe that.
But as a person who has tried a lot of cases, I am inclined to
think that the judges may be correct in their overall perception
that justice would not be enhanced in the trial court, but we will
continue to discuss it.
Thank you.
Chairman SPECTER. Thank you very much, Senator Sessions.
Professor Irons, you were in the midst of commenting actually
beyond the scope of my question, which is why I wanted to move
on before, but lets hear what you have to say.
Mr. IRONS. Well, what I was trying to get across, Senator Specter, was simply that we have, and have had for 50 years now access to the words that are spoken in the Supreme Court. And it is
a very small, and I think, as pointed out very aptly, now, because
of technology, unobtrusive process to add faces to those words.
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I remember last year when I was attending the Supreme Court
oral arguments in the Pledge of Allegiance case, sitting right behind Dr. Newdow in the bar section of the Court, I couldnt imagine
a more educational experience than being able, particularly for students, but for the general public as well, to see those arguments.
They were dramatic on both sides. And I dont think it would have
detracted from the decorum of the Court or any of its proceedings
to be able to witness those kinds of arguments.
So I think that my own experience in talking with students at
every level, from fourth grade all the way through high school,
playing them excerpts of these arguments, trying to explain what
was going on in the Court, would be enhanced immeasurablyand
I am simply talking now about the appellate level of argument, but
would be enhanced immeasurably by being able to see those proceedings as well as just listen to them.
Chairman SPECTER. You testified in your opening statement that
it was Chief Justice Earl Warren who began the practice of recording the Supreme Court arguments?
Mr. IRONS. That is correct.
Chairman SPECTER. Was there any contemporaneous statement
made or any statement made later by Chief Justice Warren as to
why he did that, what his thinking was?
Mr. IRONS. Yes. As a matter of fact, Mr. Chairman, in the accession file at the National Archivesthese arguments have been
moved from the Archives building downtown out to Suitland, Maryland, but in the accession fileand I am probably the only person
who went through that file after there was an effort by the Supreme Court to limit my access to the tapes.
A statement by Chief Justice Warren was sent to the Archives
along with the first batch of the tapes saying that he wanted them
open to the public. It wasnt until 1986 that restrictions were put
on access by Chief Justice Burger, and those restrictions remained
in place for 7 years until these tapes were released and the Court
decided, I think, very wisely, particularly in view of the publicity
that their effort to restrict them had produced, to lift the restrictions again.
So now, as a matter of fact, you can go into the Supreme Court
bookstore just down the block and purchase CD-ROMs called The
Supreme Courts Greatest Hits, which have the arguments in 62
cases, the full arguments. These, of course, are edited and narrated
for classroom use. It is hard to keep students attention during an
entire hour of argument.
I think my basic point really is that I cant see any detriment to
the Supreme Court or to the U.S. courts of appeals in having the
pictures added to the words that are already available to the public.
Chairman SPECTER. Do you think Chief Justice Warren would
have been wise to have had audio recordings of the Warren Commission proceedings made available to the public?
Mr. IRONS. I think so. As I said, Chief Justice Warren recognizedand, of course, he came from public office and he was very
used to his words being recorded and reported in the press and it
didnt intimidate him at all. But I think what he recognized was
that having presided over the second round of arguments in Brown
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v. Board of Educationand I searched high and low in the Archives hoping that they would be there somewherebut that that
is an experience that should be recorded and preserved for the public.
Chairman SPECTER. It was difficult to get Chief Justice Warren
to agree to print the transcripts of the Warren deliberations covering 26 volumes and 17,000 pages. The staffers had to go to the
Congressional members who were used to printing large volumes
of materials in the Congressional Record which werent too salient
or pithy, and that was done.
Mr. Schleiff, what about ratings for Court TV? Mr. Lamb doesnt
rate CSPAN. Do you rate Court TV?
Mr. SCHLEIFF. Yes, we do.
Chairman SPECTER. And how are your ratings?
Mr. SCHLEIFF. They are good these days, sir. But in fairness,
most of our ratings or focus on our ratings come from the proverbial prime time in the evenings from eight to eleven. While we do
have ratings during the day of our hearings and our coverage of
proceedings, they are important to the overall brand, if you will, of
the network, but it is not where we derive any principal portion of
our revenues or anything else. But they are indispensably important to what Court TV obviously, given the name, stands for.
And, yes, it is a core audience that watches it. It is an audience
that is very devoted, actually, to the process.
Chairman SPECTER. How many hours a day do you televise?
Mr. SCHLEIFF. The entire day, pretty much nine right through
when most of the East Coast courthouses close, until five oclock.
Chairman SPECTER. And how about overnight?
Mr. SCHLEIFF. We will repeat sometimes a portion, depending
upon what the case is, and some of it on the weekends. But overnight we go into something else which is called our more entertaining or seriously entertaining mode.
Chairman SPECTER. Mr. Lamb, you do interview Supreme Court
justices from time to time. What has CSPANs experience been on
that?
Mr. LAMB. Well, the most interesting experience was with Chief
Justice Rehnquist, who over a period of about 15 years let us sit
down with him four times. And it was always odd to me that he
would be so open personally and when he would go out to speak
at his circuit or he would give a speech, he would allow our cameras in; he never refused that. But when it came to inside that
courtroom, he would just shut it down.
Several years ago, we would take our cameras into the press
room and set up and do live programs in there. All of a sudden,
1 day he sent the word down no more. It is really hard to know
what the thinking is inside that conference room when they make
some of these decisions and they vote on them.
There is really only one justice out of the nine that are there now
that really has not been open, and that is Justice Souter, to anything. We have done lots of programs with these justices and kids
live coming out of the East Conference Room in the Supreme
Court. We have actually had on the air over since we have been
cataloging this, since 1987, 700 different events involving Supreme
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Court justices. So, really, the closer you get to that courtroom, the
more they want to shut it down and dont want to open it up.
Chairman SPECTER. So on those events, you have televised all
members of the Court, except for Justice David Souter?
Mr. LAMB. And Justice Scalia has been very uninterested in television cameras, the two of them. But all the rest of themyou can
go into our files and find tape. We have it in our archives. I mean,
if you want to see what these justices look like and what they
sound like, after we have done all the hearings that you have been
involved in, you can go to our archives and still find them to this
day.
Chairman SPECTER. Well, you say Justice Scalia has been uninterested in television?
Mr. LAMB. Yes, he has. He opened three events this year and
that is the first time since he has been on the Court that he has
allowed our cameras in. If he sees a camera in his giving a
speechand he gives a lot of themhe will just say either take the
camera out or I am not going to speak.
Chairman SPECTER. Does anybody choose alternative B?
Mr. LAMB. You know, interestingly enough, let me just take a
minute to tell you what happens, and it is a disappointment.
Chairman SPECTER. You can take your time. My colleagues have
all gone.
Mr. LAMB. The disappointment is this, that the venues where he
speaks, often universities, often connected with law schools, frankly
will cave. They would rather have him there instead of upholding
the principle of openness. One of the best examples of this was the
City Club of Cleveland, which a couple of years ago gave him the
Citadel of the Freedom of Speech Award. Justice Scalia went to
Cleveland to accept the award. We cover the City Club of Cleveland
all the time. We were told we could not cover this time the Freedom of Speech Award given to Justice Scalia.
You know, once they have up their mind on the Court, it is hard
to change it and we have not been successful.
Chairman SPECTER. Well, perhaps he is modulating a bit. Perhaps he has a little different point of view.
I think that we really need to get a public reaction to televising
the Supreme Court of the United States. My instinct is the public
reaction is going to be very positive. The public does not know what
has happened to Government in the United States. The Court has
taken over and rules with very much an iron hand, and very much
an inexplicable hand.
When we had the hearings for Chief Justice Roberts, it provided
an opportunity to discuss in some detail what the Court has been
doing. And when we analyzed a case called United States v. Morrison which involved the Supreme Court declaring part of the Act
unconstitutional protecting women against violence, we were able
to publicize that the Court, in a five-to-four decision, found as it did
because they disagreed with the Congresss, quote, method of reasoning, close quote.
Up until that decision, Commerce Clause questions had been decided on whether there was a rational basis for the Congressional
judgment based upon the numerous hearings which Congress
holds. The four-person dissent said that there was a mountain of
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evidence, but Chief Justice Rehnquist disagreed with our method
of reasoning, which I found, and said it at the hearings, highly insulting.
Then they upheld parts of the Americans With Disabilities Act
on access for a paraplegic five to four and denied coverage of the
Americans With Disabilities Act on employment. Justice Scalia denounced the standard as a flabby test, he called it, designed to
have the Court be the task master of the Congress to see that we
had done our homework. And they made the decision based upon
a test called congruence and proportionality which was invented in
1997 in a case called Boerne on the Religious Restoration Act.
Judge Alito is going to be asked, as Chief Justice Roberts was, to
comment about that standard.
But I think Americans would be flabbergasted to hear that the
Court devises some test on proportionality and congruence, and expects the Congress of the United States to know what the standards are. And I think it would put some legitimate pressure on the
Court to come down with decisions, if not understood by CSPANs
audience, at least understood by the Judiciary Committee. So we
are going to continue to push it and it is a question of when, in
my judgment, not a question of it, and the sooner the better.
Senator Feingold could not with us today. Without objection, his
statement will be made a part of the record.
We thank you all very much for coming. That concludes our
hearing.
[Whereupon, at 11:44 a.m., the Committee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee files.]
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Senate Hearing, 109TH Congress - Cameras in The Courtroom

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S. HRG.

CAMERAS IN THE COURTROOM

COMMITTEE ON THE JUDICIARY

Serial No. J10950

U.S. GOVERNMENT PRINTING OFFICE

For sale by the Superintendent of Documents, U.S. Government Printing Office

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COMMITTEE ON THE JUDICIARY

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SUBMISSIONS FOR THE RECORD

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CAMERAS IN THE COURTROOM

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

Chairman SPECTER. Good morning, ladies and gentlemen. The

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Senator GRASSLEY. Well, thank you very much for giving us an

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Senator SCHUMER. Well, thank you, Mr. Chairman. I appreciate

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Senator LEAHY. I am glad to see this hearing. I am the son of

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Judge OScannlain. Thank you very much, Mr. Chairman and

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Judge DUBOIS. Mr. Chairman, members of the Committee, my

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